Divisional Court
| Published date | 01 May 1992 |
| Date | 01 May 1992 |
| DOI | http://doi.org/10.1177/002201839205600201 |
| Subject Matter | Divisional Court |
DIVISIONAL
COURT
DIRECTION
TO CONVICT
OR
TO CONTINUE
HEARING?
DPP
vMcGladrigan
When the justices' conviction is quashed for an error of law, when is it
more proper to remit the case with a direction to continue the hearing
rather than to remit it with a direction to convict? This question arose in
DPP
vMcGladrigan [1991]
RTR
297, where amotorist driving his car out
of a car park on to a road stalled the engine. He had travelled 40-50 yards
on the road when he was stopped by a police constable, to whom he
confessed that he had consumed alcohol. The constable tested his breath
and, having obtained a positive result, arrested him and brought him to a
police station, where further tests confirmed the first and he was charged
with an offence under s 5 of the Road Traffic Act 1988 with driving with
excess alcohol in his body. Section 6(1) of that Act permits aconstable to
require the motorist to provide aspecimen of breath where he has
'reasonable cause to suspect' that the motorist is in that condition. The
taking of further samples at the police station is merely conditional on the
constable's being in 'the course of an investigation' of an offence under
s 5. The justices dismissed the information on grounds which were in the
past very commonly accepted; first, that the police constable had, at the
time at which he stopped the defendant, no reasonable cause to suspect
that he had alcohol in his body and, secondly, that no reason was given to
the motorist at the time as to why he was stopped. The justices held that
the arrest was unlawful and that everything which followed, under s 7,
was also unlawful for that reason. They relied on R v Fardy [1973]
RTR
268 (which decided that the question of 'reasonable cause' was one of fact)
and Williams v Jones (which was decided under the Road Safety Act 1967).
No reference was made to the decision of the House of Lords in Fox v
Chief
Constable
of
Gwent [1985]
RTR
337 that the admission of evidence
obtained after arrest is not dependent on the lawfulness of the arrest.
Indeed, when the decision in that case was brought to the attention of the
justices, they admitted that, had they known of it, they would have been
of a contrary opinion.
It
being clear that the justices were in error in relying on their doubts
of what had happened at the roadside and their finding that the arrest was
unlawful, the only question which was really in issue in the Divisional
Court was whether the remission of the case to the justices should be with
adirection that they further consider the case or with a direction to convict.
The prosecution submitted that the latter was the proper course, for two
reasons. First, the justices were not entitled to use their discretion (to
dismiss) in the absence of evidence of mala fides on the part of the police.
In Fox's case, it was stated that the justices have discretion to exclude
evidence obtained by oppression or by a trick, but that otherwise they
must apply the principle enunciated in Kuruma v R [1985] AC 197 that a
101
Journal
of
Criminal Law
mere mistake did not render the evidence inadmissible. That proposition
was put forward before the enactment of s 78 of the
PACE
Act 1984, so
that it is now subject to the further proposition that the justices' discretion
is also restricted by the need to exclude any evidence they think they ought
not to admit because its admission would affect the fairness of the
proceedings. That discretion (referred to as the 'new' discretion by the
court) does not depend on proof of mala fides on the part of the police:
see R v Samuel [1988] QB 615. There are, however, two cases in which
the Divisional Court has proceeded on the basis that proof of mala fides
on the part of the police is required; but Matto v Wolverhampton CC
[1987]
RTR
337 was decided before R v Samuel and Thomas v
DPP
[1991]
Crim LR 269 was a case in which R v Samuel was not cited. In the present
case, it was held that it would not be right to remit the case to the justices
with a direction to convict, if the only ground for so doing was that there
was not (as, indeed, there was not) a finding of mala fides on the part of
the police.
The prosecution further argued that the arrest was lawful and that the
justices had no alternative but to find that it was lawful. They had found
that the requirement of a specimen of breath was made after the constable
had received confirmation of the fact that the driver had consumed alcohol.
This in itself meant that the requirement was properly made under s 6(1),
which permits aconstable so to proceed if he has reasonable cause to
suspect that the motorist had alcohol in his body when driving and still
has it when tested. The court held that this must mean that the constable
is authorised to make the requirement if he has reasonable suspicion at
the time the requirement is made. The constable then comes within the
subsection, for that was 'a firm, and indeed complete, basis for the
constable to have the necessary "reasonable cause"'. They therefore
rejected the argument that the constable must have a reasonable cause
before or at the time at which he stopped the motorist. The case was
therefore remitted to the justices with a direction to convict.
DEFENDANT REQUIRED TO GIVE HIS EVIDENCE FROM THE DOCK
R v Farnham JJ, ex p Gibson
Section 1 of the Criminal Evidence Act 1898, which made the defendant a
competent witness for the defence,
provided-by
s
l(g)-that
every
defendant called in pursuance of the Act 'shall, unless otherwise ordered
by the court, give his evidence from the witness box or other place from
which the other witnesses give their evidence'. In R v Farnham JJ, ex p
Gibson [1991]
RTR
309, the defendant was involved in a road accident
and, being, as he claimed, dazed, had driven on and had taken 'a fair
amount of drink' after the accident. When charged with an offence of
driving with excess alcohol contrary to s 5 of the Road Traffic Act 1988
and with failing to stop after an accident contrary to s 170(4) of the Act,
he put forward the 'hip-flask defence' and stated that he had been so dazed
by a blow on the head, which he had received in the accident, that he was
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